Terms are defined in the Schedule above and/or as set out below:
(a) “Authorised User(s)” means the individual(s) authorised to access and use the Services pursuant to the terms of this Agreement.
(b) “Customer” means the corporate entity that is party to the Agreement for a Subscription.
(c) “Services” means the Art Market Research Create An Index Service, including but not limited to the Indices.
(d) “Copy” means a copy or reproduction in any form, including printed copy, a photocopy, or an electronic or digital copy, and ‘to copy’ means the act of copying or reproducing in any form.
(e) “IPR” means copyright (including typographical arrangements), database rights, trade marks, trade names, goodwill, rights in software, patents and patentable inventions, designs, confidential information, trade secrets, and all other intellectual or industrial property rights, whether registered or unregistered and throughout the world.
1.2 References to ‘including’ or particular examples shall not be construed to be by way of limitation.
2. PERMITTED USE
2.1 Subscriptions. AMRD Ltd grants to Customer’s Authorised User(s) a nonexclusive, nontransferable and limited license to access, view and store (on a non-server personal computer only accessible by such Authorised User(s)) the Services for such Authorised User’s personal non-commercial use for the term stated in this Agreement. The license is personal to each Authorised User and Indices may not be shared with any third party.
2.2 Bespoke Index reports. AMRD Ltd grants to Customer a nonexclusive, nontransferable and limited license to access, view and store (on a non-server personal computer only accessible by Customer) the Services for Customer’s own personal non-commercial use under the terms stated in this agreement. This license is personal to the Customer and Indices may not be shared with any third party.
3.1 The Customer and/or its Authorised User(s) acknowledges the services are not ‘an investment advertisement’ within the meaning of Section 57 of the Financial Services Act 1986 (or any equivalent provision in any successor or complimentary legislation thereto) and that the Licensor is not providing the The Customer and/or its Authorised User(s) with any investment advice via the Services.
3.2 Except as expressly permitted herein, Customer and, if applicable, its Authorised User(s), shall not use the Services for:
(a) Any purpose which in the AMRD’s sole opinion competes with any of the actual or potential businesses, operations or publications of AMRD.
(b) Any purpose which in AMRD’s opinion constitutes the provision of information brokerage or information provider services, irrespective of whether these services involve the provision of the information contained in the AMRD Website in a derivative, altered or ancillary form, whether manipulated, reformatted or reinterpreted, or in any other manner whatsoever.
(c) Any commercialisation (except where, in AMRD’s sole opinion, this is solely ancillary to the provision of professional advice) including, by sale, resale, loan, transfer, hire or any other form of exploitation with the intention of procuring, or result of, monetary reward.
(d) The distribution or communication to the public of any information contained in the Services whether or not in electronic form and amending or adapting any of the material contained in the Services for that purpose.
(e) Provide, rent, lend or in any other manner supply the Services, any ancillary web pages, or any data and material contained in them to any other person.
(g) Copy, republish, re-use, download, post, display, link to, mirror, modify, broadcast, transmit or in any other manner disseminate the Services, any ancillary web pages, or any data and material contained in them.
4. AUTHORISED USERS
4.1 For Corporate Subscription, Customer shall ensure that:
(a) Only those Authorised User(s) associated with the applicable Services described in the Order Form will access and use the Services.
(b) Authorised User(s) are either employees of Customer’s organisation or consultants/contractors to Customer (limited to the period of engagement and for the sole purposes of providing services to Customer). Customer shall ensure that each Authorised User(s) complies with all of the provisions of this Agreement applicable to Customer. Upon request, Customer will provide to AMRD the names and addresses of each Authorised User.
4.2 For Individual Subscription, Customer shall ensure that:
(a) Only the Customer associated with the applicable Services in the Order Form will access and use the Services.
(b) Access to the Services are limited to the number of indexes set out in the Order Form.
5. FEES AND PAYMENT
(a) Corporate Subscriptions. Customers shall pay AMRD the fees and charges for the Services set forth on the Order Form, together with any applicable taxes for the Services. Payment is due in full within thirty (30) days after the invoice date. Continued access to the Services after the renewal date will constitute acceptance of the renewal pricing. AMRD also reserves the right to immediately terminate Customer’s access to the Services, without further notice, if AMRD does not receive payment within sixty (60) days after the invoice date.
(b) Individual Subscriptions. Fees and payment terms are identical to those for Customers of Corporate Subscriptions.
6. TERM AND TERMINATION
6.1 This agreement shall continue for the duration of the license granted in this Agreement unless terminated by AMRD pursuant to clause 6.3.
6.2 Customer may cancel its subscription at any time and receive a refund of no more than 2% pro rata of the remaining term.
6.2 AMRD may terminate this Agreement at any time with immediate effect, by providing notice of such termination to the Customer, either in writing or by e-mail (to the address of the Named Contact specified in this Agreement) if the Customer fails to pay any Subscription Fee due or breaches any of the provisions of this Agreement, and where such breach is capable of remedy, fails to remedy such breach within 14 days after receipt of written notice setting out the breach and requiring it to do so.
6.3 On termination, the Customer and/or its Authorised User(s) must destroy, procure destruction of, or erase all copies of the Services in the possession of the Customer and/or its Authorised User(s) or in the possession of any other person via the Customer and/or its Authorised User(s).
7. INTELLECTUAL PROPERTY
7.1 Proprietary Rights. The Services were developed, compiled, prepared, revised, selected and arranged by AMR and others through the application of methods and standards of judgement developed and applied through the expenditure of substantial valuable time, effort and money and constitute valuable intellectual property and trade secrets of the IPR Rights Holders. Customer agrees to protect the proprietary rights of the rights holder during and after the Term. The granting of this license does not affect the ownership of any data or materials, whether tangible or intangible. All AMR information, data, software, functionality and services are proprietary and are protected by copyright laws, international copyright treaties and other intellectual property laws and treaties.
7.2 Names and Marks. Customer shall not use any of AMRD’s trademarks, trade names or service marks in any manner that creates the impression that such names and marks belong to or are identified with Customer or that Customer is associated with or licensed by AMRD to use such names or marks, and Customer acknowledges that it has no ownership rights in or to any of these names or marks. Neither party may use the trademarks, trade names or service marks of the other party in marketing materials, other than a list of customers, without the other party’s written consent.
8. LIMITATION OF LIABILITY
8.1 We shall not be liable to you for any loss or damage whatsoever resulting from omissions or inaccuracies in the Services regardless of how it was caused, including, but not limited to, the omission of any transactions from our databases, reports, and indices. We do not warrant that access to the Products will be free from errors or faults. In the event of a fault, you shall notify the Art Market Research Developments customer support team by telephone, email, or letter, and we shall use reasonable efforts to correct those faults or errors reported by you.
8.2 We shall not be liable for any claim or loss arising from:
(a) Any failure or malfunction resulting wholly, or to any extent, from your negligence, operator error, or any other misuse or abuse of any Services.
(b) Any failure by you to take steps recommended by us to resolve a fault in any Services.
(c) Any modification of any Services, its merger with any other program, or any maintenance, repair, adjustment, alteration, or enhancement of any Product by any person other than us.
(d) Your inability to use any Services due to website downtime.
8.3 To the fullest extent permitted by applicable law, AMRD does not accept liability for any loss or damage of any kind incurred as a result of your use of the Services, or relying on any information contained in the Services, including, but not limited to, the making of any purchase, sale, or other investment decision, or the giving of any advice in reliance on, or on the basis of, any Services or conclusions drawn from such Services.
8.4 AMRD encourages its customers to consult with art experts and investment professionals before making any buying or selling decisions. Past performance is not an indication of future results. Returns shown in the Services may not represent the results of actual sales transactions.
8.5 To the fullest extent permitted by applicable law, our liability in respect to any and all claims and/or actions (whether in contract, in tort (including negligence) or otherwise) arising out of or in connection with this agreement, or any product supplied hereunder, is limited to the amount of charges actually paid by you under this Agreement. No action, regardless of form, arising out of this Agreement, or any Product supplied hereunder, may be brought by you more than one year after you know of the occurrence which gives rise to the cause of such action.
8.6 Notwithstanding anything else contained in this agreement, and except where prohibited by applicable law, in no event shall we be liable to you or anyone else for loss of profits, business, revenue, goodwill, anticipated savings, or any indirect, incidental, special, punitive, consequential, or similar loss or damage of any kind or nature, even if we have been advised of the possibility of such losses or damages in advance.
8.7 You shall indemnify and hold us harmless against any and all claims, actions, demands, legal proceedings, losses, damages, liabilities, and costs and expenses, including, but not limited to, legal charges, arising from any misuse of any Services under this Agreement, whether or not authorized by you, which are brought against us by third parties, and shall reimburse us for any costs and expenses, including, but not limited to, legal charges, resulting from any claims by us against you.
9.1 The Customer undertakes to keep confidential and not to disclose to any third party or to use itself, other than for the Permitted Use, any confidential or secret information in any form directly or indirectly belonging or relating to AMRD, its affiliates, its or their business affairs, disclosed by AMRD or received by the Customer pursuant to or in the course of this Agreement (‘Confidential Information’).
9.2 The Customer undertakes to disclose AMRD’s Confidential Information only to those of its officers, employees, agents and contractors, to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement.
9.3 The above obligations of confidentiality and non-use shall not apply to information or material: (a) which is known by the Customer prior to receipt from AMRD as evidenced by documents in the possession of the Customer at the time of disclosure; (b) which, after receipt from AMRD, is disclosed to the Customer by a third party having the legal right to do so; (c) which is available to the public at the time of receipt from AMRD; or (d) which becomes available to the public after receipt from AMRD through no fault of the Customer.
10. FORCE MAJEURE
Our failure to perform any term or condition of this Agreement as a result of conditions beyond our control including, but not limited to, wars, strikes, floods, governmental restrictions, power failures, and damages or destruction of any network facilities or services, shall not be deemed a breach of this Agreement.
11.1 Nothing in this Agreement shall create or be deemed to create a partnership or the relationship of principal and agent between parties and Customer shall have no authority to buy or to make any representation or warranty on AMRD’s behalf.
11.2 Neither this Agreement nor any part or portion may be assigned, sub-licensed or otherwise transferred by Customer without AMRD’s prior written consent.
11.3 AMRD may without the prior written consent of Customer assign any benefit or transfer, delegate or subcontract any of its duties and obligations under this Agreement.
11.4 Should any provision of this Agreement be held to be void and invalid, unenforceable or illegal by a court the validity and enforceability of the other provisions will not be affected thereby.
11.5 Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or the right to enforce such provision.
11.6 Use of the Services implies acceptance of this Agreement by Customer and, if applicable, its Authorised User(s), even in the absence of a written the Order Form or other agreement with AMRD.
11.7 AMRD may modify the conditions of access to the Services and especially the mode of access to the Services, by providing reasonable notice of such modifications to the Customer, whether in writing (to the address of the Named Contact specified in the Schedule) or online.
11.8 AMRD may amend this Agreement at any time by posting an Amended Agreement on the AMRD website. Such Amended Agreement will become effective immediately upon posting. Customer’s and, if applicable, its Authorised User(s) use of the Services after the Amended Agreement becomes affective will constitute acceptance of the Amended Agreement.
11.9 Clauses 7, 8 and 12 shall survive termination or expiration of this Agreement.
11.10 This Agreement is governed by the laws of England and Wales, and the Subscriber and AMRD hereby submit to the non-exclusive jurisdiction of the courts of England and Wales.
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